1.On August 17, 1994, the Inter-American Commission on Human Rights
(hereinafter "the Commission" or "the IACHR")
received a petition from The Lawyers Committee for Human Rights
(hereinafter "the petitioners") against the Republic of Haiti
(hereinafter “Haiti”, “the Haitian State” or “the State”),
alleging violation of the rights to life (Article 4), a fair trial
(Article 8) and judicial protection (Article 25), all in conjunction
with the duty to respect rights (Article 1(1)) of the American
Convention on Human Rights (hereinafter “the Convention” or “the
American Convention”), to the detriment of Mr. Guy Malary and his
surviving next-of-kin.

2.Mr. Guy Malary, appointed Minister of Justice by President
Jean-Bertrand Aristide during his first term, continued to hold that
office under the de facto
military government of Raoul Cédras.The petitioners alleged that the murder of Mr.
Malary was planned and carried out by security agents of the Haitian
State under the military regime in Port-au-Prince on October 14,
1993.They say that the
proceeding opened to investigate and punish those responsible was beset
with flaws, such as bias of the jury that judged the two suspects who
were acquitted, and negligence shown by the judicial authorities in the
investigation.They allege that in the more than eight years since the
murder of Mr. Malary, Haiti has not carried out an investigation of the
events that was in any way adequate,
and that it has intentionally failed to bring those responsible for the
crime to justice and to compensate Mr. Malary’s family.

3.The State initially argued that the events that gave rise to the
petition occurred under the de
facto regime, and, therefore, they did not lead to the international
responsibility of the State.After
the negotiations designed to arrive at a friendly settlement,[1]
the State issued 11 arrest warrants for various persons suspected of the
murder, and in July 1999, prosecuted two of the alleged murderers, who
were acquitted after their respective trials while a third person went
out of the country making his trial impossible.The State has said that the investigation of the case is still
open and has not progressed because certain key documents are in the
possession of the Government of the United States and because of the
structural problems of the new government, which is in a process of
post-dictatorial transition.However,
the State has recognized that agents of the State took part in the
murder of Mr. Malary and that the jury that returned the verdict on the
two suspects was bribed.

4.The Inter-American Commission, meeting during its 109th
Period of Sessions on December 4, 2000 decided to declare the instant
case admissible, applying the exception to the requirement of prior
exhaustion of domestic remedies contained in Article 46(2)(c) of the
American Convention.That
exception deals with unwarranted delay in rendering a decision under
domestic remedies.[2]In February 28, 2002 at its 114th Session, according
to Article 50 of the Convention the IACHR approved a preliminary Report
on the merits and concluded that the State is responsible for violation
of the right to life (Article 4) to the detriment of Mr. Malary; and the
rights to fair trial (Article 8) and judicial protection (Article 25) of
Mr. Malary’s next-of-kin, all in conjunction with the obligation to
ensure respect for the rights recognized in the American Convention
(Article 1(1)).

5.On March 28, 2002 the report was transmitted to the State, which
had two months to comply with its recommendations, pursuant to Article
43(2) of the IACHR Rules.Also,
the petitioners were notified of the adoption of the Report and its
transmittal to the State, and were requested to present their opinion as
to whether the case should be submitted to the Court according to
Article 43(3) of the aforementioned Rules.After this period of two months the IACHR decided not to present
the instant case before the Inter- American Court of Human Rights taking
in account the position of the original petitioner.In this occasion, during its 116th Period of Sessions
the IACHR decided to approve the final Report in accordance with Article
51 of the Convention

II.PROCESSING BY THE COMMISSION

6.The petitioners and the State had initiated a friendly settlement
procedure at the hearing granted by the IACHR on May 4, 1999 and on
November 19, 2000 an agreement was signed.Later, the petitioners sent a communication to the IACHR saying
that they did not wish to continue with this friendly settlement
procedure because the State had not kept its part of the agreement.On December 4, 2000 the IACHR, meeting at its 109th
Period of Sessions, adopted Report 113/00 of December 4, 2000 whereby it
decided to declare case 11.335 admissible and to continue with the
analysis of merits.On
January 22, 2001 the parties were notified of that report, which was
published in the 2000 Annual report of the IACHR to the General Assembly
of the OAS.

7.On March 26, 2001 the petitioners asked the Commission to draw up
a report under Article 50, and requested a hearing for the 113th
Period of Sessions.On June
7, 2001 the petitioners stated to the Executive Secretariat of the IACHR
their intention to draw up a memorandum on merits of the petition, which
they forwarded on June 27, 2001 under the title “Memorandum in Favor
of the Request for Compensation of the Petitioner.”The pertinent parts of that document were transmitted on July 10,
2001 to the Haitian State which was given 30 days to reply.The State did not reply to that request.

8.On September 7, 2001 the petitioners sent a written communication
to the IACHR in which they said that a hearing on merits of the petition
would not be necessary since they regarded the information submitted to
the Executive Secretariat as sufficient.Further, they expressed their desire to close the case with the
elaboration of a report on merits by the IACHR.On February 28, 2002 during its 114th Period of
Sessions, in accordance with Article 50 of the Convention, the IACHR
approved a preliminary Report on the merits which was transmitted to the
State on March 28, 2002 with two months to comply with the
recommendations in accordance with Article 43(2) of the IACHR Rules.Also, the petitioners were notified of the adoption of the Report
and its transmittal to the State, and were requested to present their
opinion as to whether the case should be submitted to the Court in
accordance with Article 43(3) of the aforementioned Rules.After this period of two months, the State had not presented its
observations and the IACHR decided not to present the instant case
before the Inter- American Court of Human Rights.

III.POSITIONS OF THE PARTIES

A.The Petitioners

9.Mr. Guy Malary was appointed Minister of Justice by President
Jean-Bertrand Aristide during his first term and continued to hold that
office under the de facto
military government of General Raoul Cédras.According to the petitioners, in the course of carrying out his
duties, Mr. Malary worked for the implementation of the Governor’s
Island Accord,[3]
advocating the creation of an independent police force and carrying out
a comprehensive review of the judicial system of Haiti, which brought
him into direct conflict with the authorities in the country at the
time.The
attempts of Mr. Malary to promote respect for human rights and the rule
of law, would have represented a direct threat to the power of the de facto government,[4]
which led the latter to plan and carry out his murder.The petitioners allege that this murder was part of a campaign of
violence and political intimidation.

10.As regards the responsibility of the State for the homicide of
Mr. Malary, the petitioners allege that there is evidence that it was
planned (intellectual authorship) by a senior officer in the Haitian
army and by various members of the Haitian Front for Advancement and
Progress (Front pour
l’Advancement et Progrès d’Haiti).They further say that this murder was carried out by the
so-called attachés, which are
paramilitary squads made up of civilians which the de
facto government sometimes used,[5]
with the complicity of the Anti-Gang Research and Investigative Service (Service
d’Investigation et de Recherches Anti-gang, hereinafter the
"Anti-gang Service"), which is a military security
force of the State.[6]

11.The petitioners based their allegations regarding the involvement
of State agents on the fact that: a) the heavy assault weapons used in
the murder were of the kind reserved for the Haitian military; b)
eyewitnesses identified at least one of the members of the Anti-gang
Service who were on the scene immediately after the murder of Mr.
Malary; c) the witnesses from the International
Civilian Mission to Haiti (hereinafter
“MICIVIH”), who personally observed the commander of the Anti-gang
Service as he was directing the round-up of witnesses of the murder and
identified them; and, d) the similarity of the execution to other
political murders that occurred in Haiti, are proof of the participation
of agents of the State in the assassination of the alleged victim.[7]Furthermore, the petitioners mention that Mr.
Marcel Morissaint, member of the
Anti-gang Service,--one of the detainees suspected of involvement in
these events, who was subsequently
released--acknowledged to the foreign investigators that the Anti-gang
Service was responsible for the killing.

12.The petitioners explained that on the day of Mr. Malary’s
murder, when the MICIVIH observers arrived, a police guard armed with
machineguns had already surrounded the scene of the crime. For
over an hour the police prevented the MICIVIH observers from approaching
the vehicle in which the alleged victim was murdered.[8]
They further mentioned that the observers also noticed that Captain
Jackson Joanis,[9]
commander of the Anti-gang Service, was supervising the round-up of
frightened witnesses.[10]

13.The petitioners allege that the Haitian State has breached its
basic international obligations with respect to the right not to be
arbitrarily deprived of life.They say that although the murder of Mr. Malary was carried
out with the complicity of the armed forces of the de facto government, the responsibility of the State for the murder
of Mr. Malary is also attributable to later governments, not just to the
regime that was in power at the time the event occurred, inasmuch as
said violation has not been recognized and repaired, since the State has
omitted to initiate any investigation and judicial proceeding that were
at all adequate.Therefore,
the Haitian State would be responsible under the American Convention, in
spite of the fact that the current Government may have had no
involvement in the murder.[11]

14.As regards the rights to a fair trial and to be provided a
minimum degree of judicial protection, the petitioners alleged that,
despite numerous promises regarding the investigation of the murder of
Mr. Malary and the prompt availability of main suspects and new
evidence, the Haitian State has repeatedly omitted to adopt measures
designed to ensure a minimally adequate and effective investigation.[12]
According to the petitioners, the fact that the Haitian State has not
investigated the known suspects, has not accepted documents that are key
evidence, has not kept the promises made during the friendly
negotiations designed to reach a settlement, nor adopted any minimally
adequate judicial measure, has meant that the investigation and
prosecution of Mr. Malary’s murderers has been ineffective, and the
delay of eight years unwarranted.[13]

15.They alleged that in the initial investigation of Mr. Malary’s
murder by the Haitian State evidence was discovered of a broad
conspiracy to assassinate him, yet the Haitian authorities have never
arrested, nor even questioned, the majority of the suspects.Concretely, the say that at the start of the proceeding, in May
1996, the State ordered the arrest of 11 persons accused of taking part
in the murder.Of these 11
persons investigated, only three went on to stand trial in court and
only two were eventually judged and acquitted by a Haitian tribunal.The third person was detained and later released without being
brought to trial.

16.According to the petitioners, in the trial of the two persons
implicated in the case of Mr. Malary, the attorney from the Office of
the Public Prosecutor did not prepare the case or the witnesses; nor did
he try to ensure the selection of an impartial jury, which gave rise to
a mistrial.[14] They alleged that this
deliberate lack of preparation prevented crucial facts from being
established that could have determined responsibility for the murder of
the victim.

17.They further allege that the Haitian State, inexplicably and
without interrogating them, released the third person detained before
determining the nature and degree of this person’s involvement in the
murder of Mr. Malary.That
person is a key figure, there was evidence that they took part in the
events, and they admitted their participation in the assassination of
Malary to foreign investigators.The
petitioners say that after his release, the Haitian authorities only
issued a court summons which has been disobeyed.Further, the State has not made a serious effort to recapture Mr.
Morissaint; nor has it arrested or interrogated the eight other suspects
for whom an arrest warrant was issued.[15]

18.The petitioners alleged that the jury that acquitted the two
accused was biased. To show the bias of the jury they said that, in
their opinion, it was due to the improper relations that existed between
the jurors and the accused, as well as the connections of said jurors
with the previous government, which constituted a violation of the
obligation of the State to provide an independent and impartial
tribunal.[16]Specifically, one of the jurors was a television reporter
employed by the de facto
government, whom the attorney from the Office of the Public Prosecutor
who took part in the trial had called an "enemy of democracy".Two other jurors seemed to be personal friends of the defense
attorney, and a large proportion of the jury had openly shown contempt
for the eyewitnesses for the prosecution, who were homeless beggars.They further alleged that the jurors applauded when the suspects
entered the courtroom.

19.The petitioners
alleged that following the verdict acquitting the two accused mentioned
in the foregoing paragraph, the attorney from the Office of the Public
Prosecutor filed an appeal, yet it was never finalized and was refused
for procedural reasons.They explained that Article 316 of the Code of Criminal
Procedure of Haiti prevents the appeal and reversal of a jury verdict
that acquits suspects.In
other words, it only provides for appeal against convictions and not
acquittals.

20.The
petitioners also allege that the State is guilty of a series of
omissions that have prevented a meaningful investigation from being
carried out.Inter
alia, the petitioners mention in first place that in
1996, President René Préval requested the collaboration of the United
States in the extradition of Mr. Constant, a member of the FRAPH,[17]
which was refused because of formal defects; this request has not been
reiterated since 1996.In
second place, the petitioners say
that the State has refused to obtain FRAPH documents confiscated by the
United States, which constitute crucial evidence in the murder of Mr.
Malary, since they could contain useful information needed for the
investigation to move forward.They
hold that, although the Haitian State continues to demand, rightfully,
that the United States return the documents completely unaltered, the
fact that it refuses to accept anything but the full set of documents
intact prevents it from taking advantage of the apparent readiness of
the United States to hand over some documents unaltered for the purposes
of the criminal proceeding.In
the opinion of the petitioners, the “all or nothing” position
adopted by the Haitian State represents another obstacle for this
protracted investigation.[18]

21.The
petitioners allege that the breach of the obligation to investigate
other suspects or to obtain information contained in the FRAPH documents
on the part of the Haitian State are examples of its inexplicable and
unjustifiable omission, and the Haitian State’s record of eight years
of inaction is, of itself, a prima
facie violation of the right to judicial protection.The State
undertook on several occasions to request the release of some key
documents seized by United States troops in Haiti and to continue with
the investigation of other persons suspected of planning and carrying
out the deed.It was shown
that the Government of the United States has in its possession 160,000
documents that its soldiers seized in October 1994 from the offices of
the Front pour l’Avancement et
le Progres Haitien (FRAPH) and the Haitian Army (FAd’H) related to
its organization.In this
regard, the Haitian State made an official request for the return of
said documents for the purposes of the criminal proceeding.In 1996, the Ambassador of the United States in Haiti, William
Swing, informed in reply to that request, that access would be provided
to the documents on the condition that the list of names of US citizens
who were involved in the FRAPH or the FAd’H would be edited.The Haitian State refused to accept the documents altered, and
insisted on the return of the documents in their original form.Nevertheless, the petitioners consider that this attitude of
the State has led essential information for the arrest of the murderers
of Mr. Malary to be unavailable and that this constitutes a violation of
the American Convention by Haiti.[19]

22.The petitioners have said that the domestic legal remedies of the
Haitian State have been ineffective, and that the failure by the State
in its duty to carry out an effective investigation into the murder of
Mr. Malary violates its obligations under the American Convention.[20]

23.The petitioners alleged that the prosecutors and judges of the
Government of Haiti have not carried out an independent investigation of
wrongdoings committed by agents of the State because the Government has
not provided the institutions that investigated the murder of Mr. Malary
with the necessary resources to conduct an effective investigation in
keeping with the duties under the American Convention.[21]They said that the structural problems of the Haitian judicial
system are no excuse for the government constantly to refuse to
investigate and prosecute the Malary case.

24.To show the lack of independence of the court, the petitioners
mentioned that, in practice, in the Haitian judicial system neither
government attorneys, nor judges in charge of preliminary investigations
are able to conduct an independent investigation of murders with
delicate political consequences that implicate members of the armed
forces. They alleged that since the government attorney depends on the
police to investigate the facts, the former very seldom investigate the
doings of the military or the police.Further, the Minister of Justice allegedly continues to use his
power to close enquiries opened by investigating judges into delicate
matters that involve illegal acts committed by the police. They added
that investigating judges still have the authority to carry out their
own investigations of facts, yet they lack either the staff or the
resources to pursue such investigations and, in consequence, always have
to depend on the local police.They
add that the information provided by the local police is often
incomplete or useless.According
to the petitioners, investigating judges were unable to use any of their
powers of independent investigation to collect evidence or summon
witnesses for the Malary case.[22]

25.The petitioners said that, unless investigating judges, or
another institution, are furnished with the resources to carry out an
independent enquiry into the Malary homicide, no effective investigation
will be possible.They
further mentioned that the Haitian State has not provided the
institutions that investigated the Malary murder with the necessary
resources to conduct an effective investigation in keeping with the
duties of the Haitian State under the American Convention.

26.The petitioners also suggested a series of measures to the
Haitian State, in order to move forward the investigation of the case:
a) request access to the FRAPH documents with the respective
modifications; b) give fresh impetus to the search for the implicated
persons named in the arrest warrants of 1996; and c) request the
extradition of Mr. Morissaint, a crucially important suspect, for
alleged complicity in the murder of Mr. Malary.[23]

27.The petitioners mentioned a series of proceedings relating to
alleged human rights violations committed under the de
facto government that the Haitian State actively investigated,[24]
and they alleged that the fact that the Haitian State has declined to
adopt similar measures in respect of the Malary homicide is proof of
intentional and deliberate violation by the Haitian State of its
obligations under the American Convention.[25]

28.Finally, the petitioners request the Commission to find that the
deliberately insufficient and ineffective efforts of the Haitian State
to investigate and prosecute those responsible for the murder of Mr.
Malary, constitutes a violation of the American Convention under
Articles 1(1), 4, 8, and 25 thereof.[26]

B.The State

29.Initially, the Haitian State argued that it cannot respond for
the human rights violations committed by the de facto government between September 30, 1991 and October 14, 1994,
because the authors must respond personally for their actions.[27]
However, that allegation was not sustained over the rest of the
proceeding, since it later attested the existence of judicial
proceedings, investigations, and arrest warrants connected with the
murder of Mr. Malary that were pending before the courts, which were
presumably initiated when constitutional government returned to the
country.[28]

30.The State recognized the existence of an excessive delay in the
proceeding, and said that it was due to the enormous problems faced by
the State, obstacles of a technical and an economic nature, and the fact
that many of the witnesses fear for their safety.[29]

31.With respect to the trial of the two accused, the State alleged
that the competent authorities acted appropriately and in accordance
with the obligations set forth in the American Convention to ensure an
impartial proceeding.It
mentioned that there were some problems in the preparation of the
indictment presented by the State, but this was not attributable to the
Prosecutor’s Office, since, at least in the case of Mr. Robert
Lecorps, the file was prepared in a single day by American attorneys
assisting the petitioners, not by the attorney from the Office of the
Public Prosecutor.

32.The State alleged that in addition to arrest warrants for the
execution of Mr. Malary, the three detained persons were also arrested
for other crimes.Specifically,
one of them was arrested, tried, and convicted for attempted theft of a
vehicle; another was arrested for attempted murder but he was
subsequently released when the action against him for that offense was
dismissed.[30]

33.As
regards the participation of agents of the State in the murder of Mr.
Malary, the State has recognized
that at least two policemen were aware of the plan to assassinate Mr.
Malary.One of them, a
security agent at the Ministry of Justice, called Charles Avril,
allegedly tried to tell Minister Malary about the plan to murder him,
but he was supposedly prevented from doing so by a policeman of the
Anti-gang Service.[31]The latter, according to the most recent allegation of the State,
is currently in prison, and the former was apparently murdered along
with Mr. Malary, since he was in the vehicle at the time of the attack.The State alleged that Mr. Charles Avril, the security
agent, would have been a key witness in solving the Malary case, since
he was privy to the plans to murder Mr. Malary.However, that witness was killed together with the victim.[32]The State also said that on the day of the murder attachés
and policemen from the Anti-gang Service were safeguarding the security
of the killers, and that instead of protecting the Minister the police
had protected the killers.[33]

34.The State further mentioned that the files on Jackson Joanis,
Emmanuel Constant and Michel Francois were connected with the above
mentioned individuals, since the latter were under their command in the
Anti-gang Service,[34]
and that these three individuals were linked to the murder of Mr.
Malary.

35.In addition, the
State said there was an outstanding arrest warrant for Mr. Morissaint
issued by the investigating judge and the reason it had not been served
had to do with difficulties in finding said individual.[35]

36.With respect to the bias of the jury that acquitted the two
persons charged with the murder of Mr. Malary, the State recognized the
existence of several irregularities in the jury selection, inter alia, a smaller number than was legally required for the trial
of Mr. Lecorps, a fact which the trial judge disregarded.[36]The State said that eleven persons regarded as suspects faced
trail in abstencia or for contempt of court, and, because they had gone
into exile, that it had not been possible to try them, but that court
orders had been issued for their arrest.[37]

37.As to the appeal filed by the attorney from the Office of the
Public Prosecutor following the acquittal of the two accused, the State
said that it was presented in time and was denied in October 1996 on
procedural grounds.The
State added that under Haitian law, when a jury returns a verdict the
Court of Cassation cannot take the contents of that decision under
review but only ascertain that it was issued in accordance to law.[38]

38.With respect to the Haitian documents confiscated by the United
States, the Haitian State held that it would accept their return only if
they were complete, in other words, unaltered.[39]
The Haitian State says that it has not rejected the offer made by the
United States to hand over the documents, since these would determine
the outcome and progress of the criminal proceeding, but that they are
Haitian documents and, as such, belong to Haiti in their entirety.

39.On February 2, 2000[40]
the Haitian State informed the IACHR that a complaint had been filed
with the Office of the Commissioner attached to the Court of First
Instance for Port-au-Prince against an unknown person.This complaint had been transmitted to the Office of
Investigations (Cabinet
d'Instruction) for the necessary processing and identification of
the unknown person, prior to a decision within the time provided in the
Haitian Code of Criminal Procedure.The State also informed that the clerk of the Commissioner’s
Office responsible for two files on persons suspected of the murder of
Mr. Malary had his car burgled; the two files were in his car and had
never been found.It was
not until January 6, 2000 that the files had been reconstructed and
turned over to the Judge.

40.The State also mentioned that the examination of the documents
currently in the possession of the United States is a crucial element
that would enable the prompt progress of the trial.[41]
It added that Haiti is emerging from a period of dictatorship and,
therefore, has many obstacles to surmount; but that despite that, it is
working on various fronts to ensure respect for human rights.Examples of the foregoing are the judicial reform program, the
creation of the “National Commission of Truth and Justice”, and the
creation of an Anti-Crime Brigade at the Ministry of Justice to
investigate crimes and disappearances that occurred under the
dictatorship.[42]

41.Finally, the State said that the Malary case is open before the
domestic courts and that difficulties outside the control of the
officials have prevented its disposal.

IV.LEGAL ANALYSIS

A.Preliminary
Observations

42.Initially the State alleged that it could not respond for the
human rights violations committed by the de
facto government between September 30, 1991 and October 14, 1994
because the authors should respond personally for their actions.[43]Nevertheless, the Commission reminds the Haitian State that one
of the aims of the inter-American system of protection of human rights
is to establish the responsibilities of the States for the human rights
violations under their jurisdiction, and it is not that of establishing
individual responsibilities for those violations.By the same token, according
to the principle of the continuity of the State, international
responsibility exists independently of changes of government,[44]
and, therefore, Haiti is susceptible to international responsibility for
human rights violations committed by any government, actual or previous,
regardless of the regime it might have, de
jure or de facto.

43.In order to keep
to the chronological order in which the events occurred, the analysis
will deal first with the right to life, followed by the rights to a fair
trial and judicial protection, and, finally, the duty of States to
respect the rights recognized in the Convention and to adopt measures
under their domestic laws in accordance with the provisions of the
Convention.

B.Right to life (Article 4)

44.Article 4 of the American Convention provides that "[e]very
person has the right to have his life respected," and that,
"No one shall be arbitrarily deprived of his life."In accordance with the jurisprudence of the Court and the
practice of the Commission, that right is non-derogable, even in
emergency situations.[45]

45.The Commission observes that the State accepts that agents
of the State took part in the murder of Mr. Malary.This fact, apart from anything else, is duly and sufficiently
demonstrated by various testimonial and documentary evidence collected
during the processing of the instant case before the Commission.

46.As to the participation of agents of the State in the murder of
the alleged victim, the petitioners have said that: a) the reports of
eyewitnesses of the ambush and the shootout; b) the use of assault
weapons that are only available to the military forces; c) the presence
of officers of the Anti-gang Service at the scene of the murder; and, d)
the similarity of the execution to other political assassinations are
evidence of participation by agents of the State in the murder of the
alleged victim.The
petitioners allege that this evidence of the participation of the
Haitian State signifies that it has violated its obligations to respect
the right to life in accordance with Article 4 of the American
Convention.

47.Further, the State has
recognized that at least two policemen knew about the plan to
assassinate Mr. Malary.One
of them, a security agent at the Ministry of Justice, called
Charles Avril, allegedly tried to tell Minister Malary about the plan to
murder him, but he was supposedly prevented from doing so by a policeman
with the Anti-gang Service.[46]The latter, according to the most recent allegations of
the State, is currently in prison, and the former was apparently
murdered along with Mr. Malary, since he was in the vehicle at the time
of the attack.The
State also mentioned that the three persons for whom arrest warrants had
been issued were linked to the murder of Mr. Malary and had connections
with the aforesaid security agents since the latter were under their
command in the Anti-gang Service.[47]

48.By the same token, the
State recognized the possible link of the Anti-gang Service with the
murder of Mr. Malary and the concealment of the murderers at the scene
of the crime.Concretely,
at the hearing before the Commission of March 5, 1999, the representative of
the Haitian State[48]
said that “on the day of the murder attachés
and policemen from the Anti-gang Service safeguarded the security of the
killers (…) the police, instead of protecting the Minister, protected
the killers,” thereby clearing
attesting to the participation of military security agents and
agents of the Anti-gang Service in the concealment of Mr. Guy Malary’s
murder.

49.The petitioners, in turn, confirm these facts recognized by the
State, alleging that when
the MICIVIH observers arrived, the police guard armed with machineguns
had already surrounded the scene of the crime.For over an hour the police prevented the MICIVIH observers from
approaching the vehicle in which the alleged victim was murdered. They
further mentioned that the observers also noticed that the commander of
the Anti-gang Service was supervising the round-up of frightened
witnesses.

50.Therefore, after examining the above facts, the Commission finds
that there is no dispute between the parties with respect to the
participation of agents of the State in the murder of Mr. Guy Malary.The parties differed over the degree of complicity of said agents
in the deed, which could not be clarified because the judicial
proceeding was not concluded that might have been able to determine the
identities of the perpetrators and the intellectual authors.Nevertheless, the facts recognized by the State allow the
Commission to determine that at least some agents of the Anti-gang
Service and of the armed forces participated in the planning and
concealment of the murder of Mr. Malary.

51.The
Inter-American Court has held previously that,
unlike domestic criminal law, it is not necessary to determine the
perpetrators' culpability or intentionality in order to establish that
the right to life has been violated, since "the sole requirement is
to demonstrate that the State authorities supported or tolerated
infringement of the rights recognized in the Convention."[49]

52.In the instant case, after examining the information supplied by
the parties, the Commission finds that the State is responsible for the
actions of its agents, as well as for the acts perpetrated by the
individuals who, through its complicity, were able to carry out and
conceal the execution of Mr. Malary in violation of his right not to be
arbitrarily deprived of life.Accordingly,
the Commission concludes that the Haitian State is responsible for the
violation of the right to life of Mr. Guy Malary, provided in Article
4(1) of the American Convention.

C.Right to a fair trial (Article 8)

53.The
right to a fair trial is one of the fundamental pillars of a democratic
society.This right is a basic guarantee of respect for the other
rights recognized in the Convention, because it limits abuse of power by
the State.The organs of
the American Convention are competent, pursuant to Article 33 thereof,
to determine if the actions or omissions of any State organ, including
the Judiciary, entail the responsibility of the former in accordance
with the international obligations assumed in good faith when it
ratified the American Convention.

54.Thus, the Commission is fully entitled to examine, for instance,
if in the course of a criminal proceeding the judicial guarantees set
forth in Article 8 of the Convention were respected.Whether or not a judicial proceeding meets the requirements
under Article 8 must be determined based on the individual circumstances
of each case and by examining the entire process.Accordingly, the Commission will examine several aspects that
have been alleged by the petitioners: first, the obligation to provide
judicial proceeding within a “reasonable time”, and second, the
obligation to establish “impartial” tribunals.

a.Right to a proceeding within a reasonable time (Article 8(1))

55.Article 8(1) specifically mentions the obligation of States to
provide judicial proceedings within a "reasonable time" to
avoid undue delays that lead to deprivation or denial of justice.

56.In order to determine what constitutes a reasonable time, the
Inter-American Court of Human Rights has applied the concept of
"global analysis of the proceeding", according to which, to
determine its reasonableness, it is necessary to include the delays at
the various stages of the proceeding as a whole.[50]

57.In the instant case, the IACHR notes that the petitioners and the
State have mentioned 11 persons for whom arrest warrants were issued
because they were allegedly implicated in the execution of Mr. Malary.Of those persons only two have been prosecuted by the competent
judicial authority, with a final judgment rendered in October 1996.In the following analysis, the Commission will refer to the delay
in the prosecution and final judgment in connection with Mr. Malary’s
murder of the nine other persons for whom an arrest warrant was issued
and other unknown persons who are also under investigation.

58.As regards reasonable time to render a decision in the case, the
petitioners alleged that the budgetary and other constraints of the
Haitian judicial system do not justify the delay in the investigation of
the instant case.Furthermore,
the State did not deny that there was a delay in the investigation.Nevertheless, it has said that the delay has been justified by
the fact that several suspects are in exile; the problems in locating
them and in the collection of other evidence, such as the documents
confiscated by the United States; and the reconstruction process in the
country following the military dictatorship.

59.According to the jurisprudence of the Inter-American Court of
Human Rights, three points must be taken into account in determining a
reasonable time within which the trial must be conducted: a) the
complexity of the matter; b) the judicial activity of the interested
party; and, c) the behavior of the judicial authorities.

i.The complexity of the matter

60.With respect to the complexity of the case, the IACHR finds that
the legal complexity of the proceeding was not particularly significant;
however, the Haitian court managed to have difficulty collecting
evidence.The IACHR finds
that a case is not made complex merely by the presence of a large number
of accused or suspects.[51]
However, the IACHR considers that the criminal proceeding underway in
Haiti became complex when the accused persons for whom arrest warrants
were issued left the country, the place where the crime was committed.[52]The Haitian State submitted a request to the Government of
the United States for the extradition of one of these persons; however,
according to the petitioners’ briefs, this request was denied.The IACHR considers extradition proceedings to be relatively
complex, bearing in mind that they entail the jurisdiction of two or
more States.[53]
The Haitian State, where the events under investigation occurred, might
find itself unable to secure the appearance in court of the accused and
to proceed to interrogate them.In
addition to the foregoing there are the problems of formalities.

61.As regards the documents of the Haitian military and police
forces that allegedly planned and carried out the murder of Mr. Malary, the petitioners and the State allege that they
were confiscated by the United States and that they are currently in the
possession of the latter.In
the opinion of the IACHR, obtaining these documents--which both the
State and the petitioners recognized as potentially crucial to the
investigation of the facts--made the criminal proceeding complex.

62.Indeed, the petitioners have said that the Government of the
United States has in its possession 160,000 documents pertaining to the
FRAPH military organization and the FAd’H, and that the Haitian State
made an official request for the return of said documents for the
purposes of the criminal proceeding.In 1996, the Ambassador of the United States in Haiti, William
Swing, informed in reply to that request, that access would be provided
to the documents on the condition that the list of names of US citizens
who were involved in the FRAPH or the FAd’H would be edited.The Haitian State refused to accept the documents altered, and
insisted on the return of the documents in their original form.Nevertheless, the petitioners consider that this attitude of the
State has led essential information for the arrest of the murderers of
Mr. Malary to be unavailable.[54]The Haitian State says that it has not rejected the offer made by
the United States to hand over the documents, since these would
determine the outcome and progress of the criminal proceeding, but that
they are Haitian documents and, as such, belong to Haiti in their
entirety.

63.The
IACHR finds that the Haitian State has requested the United States to
return the aforesaid documents and inasmuch as that country has refused
to give them back in their original form--exactly as they were when they
were confiscated--, the Haitian State has refused to receive them.The IACHR considers that these circumstances make the judicial
proceeding complex, insofar as they involve judicial cooperation and
assistance between States.

64.Bearing
in mind the foregoing factors, the IACHR finds that the instant case not
only concerns a criminal proceeding, but also an extradition proceeding
and the transfer of evidence from the jurisdiction of one country to
another.Consequently,
the IACHR concludes that those proceedings are relatively complex and
required particular diligence on the part of the Haitian judicial
authorities to ensure the conclusion of the proceeding within a
reasonable time.

[1]
The friendly settlement procedure was initiated at the hearing of
the parties held before the IACHR on March 5, 1999, and lasted until
the meeting of August 23, 2000 held in Haiti, in the framework of
the on-site visit of the IACHR.See Report Nº 113/00 of the IACHR which declares the instant
case admissible.

[3]
That agreement was signed on July 3, 1993 with the objective of
facilitating a peaceful transition to a democratic government, a
process that was to culminate with the return of President Aristide
on October 15, 1993.

[4]
Memorandum in Favor of the Request for Compensation of the
Petitioner. Lawyers Committee for Human Rights, Debevoise &
Plimpton. New York, New York, June 26, 2001 p. 25.

[5]
Attachés have no legally recognized status, yet in 1993 a group of
them formed the organization known as FRAPH and other groups operate
in criminal gangs known as "zenglendos".See: Inter-American Commission on Human Rights, Report on the
Situation of Human Rights in Haiti, February 1994 para. 73.

[6]
The Anti-gang Service is a specialized unit of the military police
in Port-au-Prince, whose offices are located in the Military Police
headquarters under the command of Lt. Colonel François.

[15]
The petitioners mention that in 1995, President Aristide formed a
group of international attorneys in order to conduct investigations
into human rights violations, such as the murder of Mr. Malary.

[24]
The petitioners said that in 2000,
the Haitian courts sentenced 43 accused, 37 of them in
absentia, for their part in the massacre of civilians in
Raboteau on April 22nd., 1994.They also cited the trial in absentia of Captain Jackson
Joanis, one of the leading figures in the Anti-gang Service
implicated in the Malary murder, for his part in the murder of
Antoine Izméry, one of the activists in favor of the reinstatement
of Aristide as President of the country and creator of the Committee
for the Emergence of the Truth
(KOMEVEB).

[30]
See Inter-American Commission on Human Rights, 102nd
Period of Sessions, Hearing Nº 43 of Friday, March 5, 1999, Literal
transcription of the cassettes, pp.7-9 (hereinafter Record of
Hearing Nº 43).

[40]
Letter from the Minister of Justice and Public Security of Haiti to
the IACHR and the petitioners to inform about the progress of the
judicial proceeding.The
annex is a notice from the Court of First Instance for
Port-au-Prince of January 18, 2000 mentioning the status of the
files.